Give the Devil Benefit of Law

“Torture absolutely works,” said President Trump, ignoring findings of the Senate Intelligence Committee report of December 2014 which concluded that the CIA’s enhanced interrogation techniques provided no actionable intelligence, led to decreasing the U.S.’s international standing, and was used as a selling-point to facilitate recruitment by terrorist organizations.

Ignoring the report might be the President’s prerogative. For one, the report never garnered bipartisan support within the Senate Committee. Furthermore, the “value” of information gained through torture is a question of perception. In 2015, Daniel Ames and Alice Lee offered an insightful study in social psychology, in which they showed that moral support for torture skews the perceived value of coerced information. They demonstrated how a priori opinions on complex phenomena influence critical evaluations of inconclusive empirical evidence.

Responding to arguments that “torture works” should therefore not be that “it doesn’t”.  Whereas the utility of torture is debatable, its certain illegality is not. As with slavery, biological weapons, or indeed terrorism itself, the arguments against torture must never descend to questions of utility, but must remain rooted in the repugnance it elicits, its illegality, and its contradiction with hard-won gains in international human rights and humanitarian law.

Of the number of reservations expressed by the United States when ratifying the Convention Against Torture, none pertained to Article 2 which comprehensively prohibits the justification of torture under exceptional circumstances including war or public emergencies. This provision echoed Article 7 of the International Covenant on Civil and Political Rights which universally, and unequivocally, banned the use of torture. statements that terrorists “deserve” any punishment dished out to them is a radical reversion to a time beyond legal memory; one that mimics the reversion of terrorist ideologues to a time pre-civilization.

After 9/11, The United States claimed that members of terrorist organizations captured in Afghanistan, and then in Iraq, were ‘unlawful combatants’ who forfeited, due to their unlawfulness, any claims for protection under instruments of international humanitarian law. Following this legal innovation, the Israeli High Court of Justice was commended for its 2002 ruling which asserted that every individual, regardless of their lawfulness, was entitled to protections of the law, ‘even if most minimal, by customary international law’. This includes Common Article 3 of the Geneva Conventions, as well as Article 75 of Additional Protocol I which is generally accepted as customary international law, and which prohibits all kinds of physical and mental torture or other forms of degrading and inhumane treatment. This position was subsequently adopted by the United States at the beginning of President Obama’s tenure. Executive Order 13491 signed on 22 January 2009 stressed that Common Article 3 of the Geneva Conventions provided the ‘minimum baseline’ for treating all individuals detained in an armed conflict including those apprehended in relation to the War on Terror. The Executive Order was solidified into U.S. law through the National Defence Authorization Act of 2015, sealing the illegality of torture, including waterboarding and other degrading and inhumane treatment.

President Trump still believes that the ban on torture can be rescinded through an Executive Order. The draft Executive Order, as released by the New York Times, asks the Directors of National Intelligence, and Central Intelligence Agency, along with the Attorney General to make recommendations to the President on the re-initiation of a program of interrogating high-value, alien terrorists to be operated outside the United States, including in detention facilities operated by the CIA. “Black Sites” have had a damaging effect on the United States’ reputation as a stalwart of human rights and international law. It emboldened authoritarian rulers around the world, and demonstrated that the United States only defends the universality of human rights and international legal instruments when expedient. A revival of extraordinary rendition and selective condonation of torture would bear heavily on individuals who look westward in their daily struggle against political repression in their homelands.

Terrorists make a travesty of their canons and use expediency and narratives of victimization to justify abhorrible acts of violence. It should be beneath us to do the same.

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